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2002 DIGILAW 494 (CAL)

Prabir Kumar Nath v. Naba Kumar Das

2002-07-26

Malay Kumar Basu

body2002
JUDGMENT Malay Kumar Basu, J.: This application under Article 227 of the Constitution of India has been directed against the judgment and order dt. 6.11.2000 passed by the ld. Civil Judge (Jr. Division), Haldia in T.S. No. 181 of 2000 whereby the petitioner has been restrained from executing a work order which was issued by the O.P. No.3. The relevant facts leading to this application are in brief as follows. The petitioner carrying on business as a construction-firm, in response to a notice dt. 19.8.2000 inviting tender issued by the Indian Oil Corporation Ltd., Haldia Refinery, submitted his offer after complying with the terms and conditions and requisite qualifications. The authority being satisfied with the particulars of the petitioner accepted his offer and issued work-order in his favour on 8.11.2000 giving therein all the terms which he was to observe specifying that the project was to be completed within 12 months from the date of the work-order. The petitioner then took all steps for starting the work and invested huge sum. But on 10.11.2000 suddenly he was served with a copy of the order of the Court of Civil Judge (Jr. Divn.) Haldia whereunder he was directed to refrain from executing that work-order until further orders. That order of the Court was passed ex parte. Being aggrieved by that order he preferred an appeal before the Court of Civil Judge (Sr. Divn.), Midnapur, but having not got a date for early hearing he did not take any further step in that appeal and in order to get a speedy remedy he has preferred this application under Article 227 of the Constitution challenging the impugned order as jurisdictionally erroneous, illegal, improper, unjustified and hence unsustainable. 2. It has been contended by Mr. Mitra, ld. Counsel, for the petitioner that the ld. Civil Judge has not complied with the requirement of Rule 3A of Order 39, C.P. Code and after granting ad interim injunction ex parte did not consider it necessary to fix a date within 30 (thirty) days of that order to finally dispose of the application. Mitra, ld. Counsel, for the petitioner that the ld. Civil Judge has not complied with the requirement of Rule 3A of Order 39, C.P. Code and after granting ad interim injunction ex parte did not consider it necessary to fix a date within 30 (thirty) days of that order to finally dispose of the application. The further contention of the petitioner is that the Court below failed to appreciate that in a public tender where welfare of the public is the primary consideration, no Court should interfere with its execution and that the Court below also failed to appreciate that in respect of a contract covered by tender, the plaintiff had no locus standi to file any suit to get any order restraining the person who is entrusted with the work order and that the authority inviting tender do reserve their rights to cancel any offer made by a contractor who is not eligible to participate. Mr. Mitra refers to the decision reported in AIR 1977 S.C.1222 (T.G. Telang & Anr. vs. R.C.G. Bhide & Ors.) wherein it has been held that it is only when an order of a Tribunal is violative of the fundamental basic principles of justice and fair play or where a patent or flagrant error in procedure or law has crept in, or where the order passed results in manifest injustice that a Court can justifiably intervene under Article 227 of the Constitution. According to Mr. Mitra, in the present case such a type of glaring and manifest error of law has been committed by the Court below so that it calls for an intervention of this Court through Article 227. He also cites the decision in Tata Cellular vs. Union of India, reported in (1994) 6 S.C.C. 651 , to advert to the legal position settled by their Lordships therein that a Court of law cannot interfere with the Govt.'s freedom of contract, invitation of tender and refusal of any tender which pertains to policy matter, but it will only sit to review such an administrative action when the decision of the authority is vitiated by arbitrariness, unfairness, illegality, irrationality, or "Wednesbury unreasonableness", i.e., when decision is such as no reasonable person on proper application of mind could take or there has been a procedural impropriety. It was held that the Court would set right the decision-making process, but it would not substitute its own opinion for that of the experts and review the merits of the decision itself. Mr. Mitra also relies upon the Apex Court judgment reported in AIR 1968 S.C. 222 (S.L. Gram Panchayat vs. R.G. Gosavi & Anr.) which enjoined that the power of High Court was limited to seeing that the Tribunal or, for that matter, any Court below was functioning within the limits of its authority and it might interfere if the discretion exercised by it was capricious or perverse or ultra vires and there was grave miscarriage of justice. According to Mr. Mitra in the instant case such a situation has been created by virtue of the passing of the impugned order under which the decision of the administrative authority of the Govt. in accepting the quotation which has been deemed best by it - a power which is within its exclusive jurisdiction as a guardian of finances - has been erroneously interfered with and as a result of such capricious exercise of discretion of the Court serious miscarriage of justice has been occasioned and this has necessitated this Court's intervention by way of exercising its power of general superintendence as envisaged under Article 227 of the Constitution. 3. As against this, the contention of the O.P. has been that this application under Article 227 is not legally maintainable at all, inasmuch as, the impugned order is an appealable one in view of the provisions of Order 43 Rule 1, sub-rule(r), of the Civil Procedure Code and the provisions of Article 227 cannot be attracted to such a case. According to the ld. Advocate for the O.P., the plea of the petitioner that he has filed this application since by preferring appeal against the impugned order he would not get any speedy or efficacious remedy is not tenable under the law. In support of his contention the ld. Counsel has referred to the decision of the Apex Court in A. Venkatasubbaya Naidu vs. S. Chellappan, reported in AIR 2000 S.C. 3032 . It has been held there as follows: "It cannot be contended that the power to pass interim ex parte orders of injunction does not emanate from Order 39 Rule 1. Counsel has referred to the decision of the Apex Court in A. Venkatasubbaya Naidu vs. S. Chellappan, reported in AIR 2000 S.C. 3032 . It has been held there as follows: "It cannot be contended that the power to pass interim ex parte orders of injunction does not emanate from Order 39 Rule 1. In fact, the said rule is the repository of the power to grant orders of temporary injunction with or without notice, interim or temporary, or till further orders or till the disposal of the suit. Hence, any order passed in exercise of the aforesaid powers in Rule 1 would be appealable as indicated in Order 43 Rule 1 of the Code. The choice is for the party affected by the order either to move the appellate Court or to approach the same Court which passed the ex parte order for any relief. Now what remains is the question whether the High Court should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies. Though no hurdle can be put against the exercise of the Constitutional powers of the High Court it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a Constitutional remedy. Ld. Single Judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High Court had chosen to entertain the revision petition." 4. Article 227 of the Constitution dwells upon the power of superintendence by the High Courts over all Courts under it. This involves a duty on the part of the High Court to keep all such Courts within the bounds of their authority to see that they do what their duty requires and that they do it in a legal manner. Article 227 of the Constitution dwells upon the power of superintendence by the High Courts over all Courts under it. This involves a duty on the part of the High Court to keep all such Courts within the bounds of their authority to see that they do what their duty requires and that they do it in a legal manner. It has been now well settled that this means that the High Court can interfere in cases of jurisdictional error of law apparent on the face of the record, violation of the principles of natural justice, arbitrary or capricious exercise of authority or discretion or arriving at a finding which is perverse or based on no material. 5. In the present case the ld. Civil Judge (Jr. Dvsn.) by the impugned order granted interim injunction ex parte, but did not assign any reason; nor did he restrict the period within which the application for injunction would be finally disposed of to a time-frame of thirty days in violation of the mandatory requirement of the provisions of Rules 3 and 3A of Order 39, C.P. Code. But, even then he was within his power. In other words, passing of such an order did not constitute any jurisdictional error. It has been held in the abovementioned judgment of the Supreme Court, AIR 2000 SC 3032 : "It is the acknowledged position of law that no party can be forced to suffer for the inaction of the Court or its omission to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39 of the Code in terms of Order 43, Rule 1 of the Code. He cannot approach the appellate or revisional Court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party who does not get justice due to the inaction of the Court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39 Rule 3-A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. So we are of the view that in a case where the mandate of Order 39 Rule 3-A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate Court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate Court in complying with the provisions of Rule 3-A." 6. It has been further held there that in a case where the mandate of Order 39 Rule 3-A is flouted, the aggrieved party shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction against the order remaining in force and in such appeal, if preferred, the appellate Court should be obliged to entertain the appeal and further to take note of the omission of the subordinate Court in complying with the provisions of Rule 3-A. 7. Thus the spirit underlying the verdict given by the Apex Court is clearly manifest in its observation in para 20 of this judgment to the effect that the High Court should direct the party to avail himself of anyone of the two other alternative remedies, namely, moving the appellate Court against such order, or, approaching the same Court for vacation or modification of the order. 8. In this connection, it will be relevant to mention another decision of the Apex Court to similar effect reported in AIR 1977 S.C. 1703 wherein it held that when there was other appropriate and equally efficacious remedy like preferring of appeal against the impugned order the High Court should keep its hands off to enable the party to resort to the same at the first instance. 9. In the present case, it is the case of the petitioner-defendant that although he first took steps for preferring an appeal under Order 43(1)(r) read with section 104 of the C.P. Code, later having been advised by his Counsel he did not pursue such action and hence no appeal having been preferred, in view of the above quoted decision of the Apex Court in AIR 2000 SC 3032 , his only remedy is now lying in the hearing of this application under Article 227 before this Court. But this is not correct. Although the defendant No.5 petitioner did not ultimately prefer any appeal, admittedly the defendant-O.P. Nos.2, 3 & 4 filed an application before the trial Court itself for vacation of the impugned order and that petition is still pending there. [Vide para 3(e) of the affidavit-in-opposition filed by the plaintiff O.P. No.1]. 10. The framers of our Constitution while incorporating the provisions of Article 227 certainly did not intend that they might serve as a substitute for the provisions of Order 43 of the Code, or as a universal panacea enabling an aggrieved party to take its aid whenever he or she has omitted or failed to prefer an appeal within the prescribed time. It could never be the intention of them to render the elaborate chapter of the Code which is devoted to various particulars and procedures relating to preferring of appeal before the appellate Courts meaningless by leaving it to the aggrieved litigant to choose according to his sweet will between this and the Constitutional remedy. The expression, "power of superintendence of High Court" refers to an overall guardianship, a power of checking in general of the performance of the lower Courts and in course of having an exercise of such a power it can go to the extent of setting right an error which is jurisdictional in nature or which is an error of law being apparent on the face of the record or an order which is grossly against the principles of natural justice or which represents arbitrary or capricious exercise of discretion or authority or which is based on no materials. Error of law apparent on the face of the record should be distinguished from a mere mistake of law in the case of which the general power of superintendence of this Court has little role to play. This is more so, when there is specific provision in the procedural Code offering a specific remedy in the form of appeal or revision or an application before the same Court for review or modification or vacation of the impugned order. Thus a petition under Article 227 has to fulfil these conditions and within this compass it will have its full play. Thus a petition under Article 227 has to fulfil these conditions and within this compass it will have its full play. When it is alleged in an application that the findings arrived at by the Court below are not correct or not acceptable and the applicant wants the Court to draw a different conclusion from the same materials, then these provisions are not attracted at all. Here the main attack on the impugned order is on the score that it is an unreasoned and is in disregard of the mandatory provisions of Rule 3-A of Order 43 of the Code. But, as I have discussed above, in view of the observations of their Lordships in the abovementioned rulings such omission or error of law will not bring the order within the purview of Article 227 and the aggrieved persons are to work out the provisions of the Code by either filing an appeal or an application before that very Court for vacating such an order. Since admittedly such a petition for vacating of the impugned order is still pending before that very Court having been filed by the defendant Nos. 2, 3, & 4, the present petitioner being the defendant No.5 is at liberty to join those defendants in that petition or to wait for its disposal. 11. There is another aspect of the matter. In the said judgment ( AIR 2000 SC 3032 ) the Apex Court has come to hold further that while entertaining the appeal against such an order the appellate Court shall be obliged to take note of the omission of the subordinate Court in complying with the provisions of Rule 3A and in appropriate cases apart from granting or vacating or modifying the order of such injunction may suggest suitable action against the erring judicial officer including recommendation to take steps for making adverse entry in his A.C.Rs. 12. It has come to the notice of this Court again and again that the Presiding Officers of the trial Courts very often betray their ignorance about the said provisions of Order 43 of the Code and passes orders in contravention of such mandatory dictates of the law. 12. It has come to the notice of this Court again and again that the Presiding Officers of the trial Courts very often betray their ignorance about the said provisions of Order 43 of the Code and passes orders in contravention of such mandatory dictates of the law. They grant interim injunction ex parte without recording the reasons and violate Rule 3 and they fix the next date beyond the period of 30 days for finally disposing of the application for such injunction and violate Rule 3A just as the Courts below have done in the present case. In order to prevent the recurrence of such an exposition of utter ignorance of law on the part of them I feel that there is a necessity for alerting the judicial officers of this State with regard to such a legal position including the mandate of the Apex Court that the appeal-Court should take appropriate administrative action against the errant judicial officer by making adverse entry into his A.C.R. or the like. The ld. Registrar General of this Court therefore is directed to take suitable action in this regard. If deemed necessary, he may circulate copies of this judgment amongst all the judicial officers of this State, in particular, giving a warning to the presiding judicial officer of the instant case. A xerox copy of this judgment & of the impugned order be sent to the ld. Registrar General for taking necessary action. 13. In view of the legal principles discussed above, this revisional application under Article 227 of the Constitution does not appear to be well conceived and is not found to be maintainable. Accordingly the same is dismissed. Revisional application dismissed.